MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.

Thursday, September 27, 2007

The Malaysian Bar at its AGM last March passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment. Human rights lawyer Renuka T. Balasubramaniam produces compelling and cogent reasons why all Malaysians should declare whipping barbaric.

“I got six. It was just incredible pain. Burning – like someone sticking a hot iron on your bum. That’s the sort of feeling. Pain – just ultimate pain. The strokes come one a minute, but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out – ‘baam’. Afterwards my bum looked like a side of beef. There were three lines of raw skin with blood oozing out.” – New Zealander Aaron Cohen who received six strokes in 1982 for drug trafficking.

AMONG the many laws of Malaysia, 29 Acts of Parliament – such as the Dangerous Drugs Act, Immigration Act, Moneylender’s Act and the Child Act – and a further 48 sections under the Penal Code call for the punishment of rotan or whipping. Some offences provide for the maximum number of 20 strokes.

The recent YouTubeposting depicting actual footage of a prisoner being given the maximum 20 strokes of the rotan by Malaysian prison authorities caused worldwide revulsion. The bloods-pattered video was deemed so horrific by the YouTube user community that it was “removed due to terms of use violations”, while a second similar video carried a condition that one would first have to declare that he/she is 18 or older by logging in or signing up.

Readers are hereby challenged to watch it in its entirety, and see how they feel about whipping afterwards.

International condemnation

Amnesty International and the UN Human Rights Committee have condemned whipping and other forms of corporal punishment as cruel, inhumane and degrading punishment and contrary to human rights law.

Law Minister Datuk Seri Mohamed Nazri Abdul Aziz even relied on this international condemnation of whipping when he explained in Parliament during the debate on the Anti-Trafficking Bill that Malaysia, having aspirations of being a good UN citizen, had purposely excluded whipping as a form of punishment from the Bill.

The UN Committee Against Torture has called for the abolition of corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhumane and degrading treatment or punishment.

Accordingly, the Malaysian Bar, at its AGM earlier this year, passed a resolution declaring that whipping is cruel, inhumane and degrading and called for the abolition of the sentence in any legislation, and particularly against offenders of the Immigration Act.

The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in our prisons and detention camps. On top of this, migrant and refugee communities, by virtue of the penalties under the Immigration Act, are the primary victims of corporal punishment. Oftentimes the punishment of caning, although discretionary, is handed down, as a deterrent.

I have observed first-hand that it is not uncommon for judges to sentence immigration offenders to at least two strokes each.

In deciding that whipping must be abolished, the Malaysian Bar also considered it from a larger perspective and took the view shared by many, that because it is cruel and inhumane, no one should have to bear that suffering, and therefore called for the abolishment of caning for all offences.

Administering cruelty

The person administering the sentence is in fact administering cruelty on another human being under the guise of carrying out orders. These orders are, in turn, derived from a policy that disregards the universally accepted spiritual principle of non-violence.

As a member of the human race, I believe I am duty-bound to do what I can to subvert the continuance of these wrongs against humanity. I believe that one day, humanity can agree that the taking of life or causing grievous bodily harm intentionally and under any circumstances, especially via sentencing principles, is wrong.

Deterrent?

There are those who say that the fear of being caught and subject to penal consequences deters crime. But a recent study on the deterrent effect of longer prison sentences by David S. Lee of Columbia University and Justin McCrary of Michigan University showed that the threat of increased penalties does not seem to alter criminal behaviour.

Their findings suggest that potential criminals do not think at all of the consequences of their actions before committing crimes, thereby negating the effect of harsher criminal sanctions.

The Ouimet Report by the Canadian Committee on Penal and Correctional Reform published in 1969, had this to say: “Traditional prisons tear the individual away from his duties towards his family, his community, his education and his work and isolate him in an abnormal community where he is exposed to a code of values established by criminals. Opportunities to make decisions, which are such an important factor in social rehabilitation, are extremely rare. It is difficult to imagine a system less conducive to life in society than traditional prisons.”

Add to this the humiliation of being whipped, and one cannot possibly derive a conclusion that punishments of imprisonment and whipping are for the benefit of ‘rehabilitation’ and ‘deterrence’.

When the death penalty was abolished in the United Kingdom many decades ago, it became evident from studies that the number of murders did not increase. It remained more or less constant. This is frequently cited as authority against the death penalty and on the subject of how deterrence simply does not work.

Dysfunctional personalities

I hold the opinion that criminal tendencies – all of them – are symptoms of dysfunctional personalities. The cause of these dysfunctional personalities usually can be simplified to inadequate or non-existent parenting and the absence of love or compassion in their lives.

This we can imagine is a reason the Ministry of Women, Family and Community Development is attempting to promote the idea that the family unit is core in the development of the community. I really believe that we cannot rid society of its evils, but we can substitute evil with values that are true, good and beautiful.

Public opinion

Often, the principles of sentencing seek to reflect public opinion. Realistically, if the education, socio-economic background and even the self-sufficiency of the public today were to be considered as a whole, the public would be represented by your average lower-middleclass man in the street with not much education, little economic influence, little political influence, little self-confidence and fear-based reactions to all events occurring around him. He has a very limited perspective of his environment, and out of this ”ignorance“’ he may seek to cling to what he knows and believes as the only way of protecting himself.

Thus ”public opinion” would be based on the lowest common denominator. This is evident where “public opinion’ on whipping is based on the principles of retribution, ”teaching a lesson” and using fear tactics to ensure that society toes the line.

So, instead of reflecting public opinion, members of the Bar are taking the initiative to actually lead public opinion by lobbying the fact that the public interest would be best served if the offender is induced to turn from criminal ways to more wholesome living.

The Malaysian Bar has, with its resolution, avowed to lead public opinion by rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation.

Although revenge and retribution in individuals may be understandable, society as a whole should not operate on such base principles because it cannot be forced to react through legislation, to the strong feelings of victims of crime.

To this end, prison rehabilitation programmes should be revamped and tailored toward psychological counselling, encouraging a convict into self-examination through which it is hoped he may gain insight into his actions.

In the example of the brutal rapist, society should harbour the faintest hope that some of these offenders, upon undergoing rehabilitation, may experience a desire to make amends as a result of the compassion and counselling he has received and thus be motivated to do something good for society or his family upon his release.

Conclusion

Whipping has failed as a retributory and deterrent sentence, just as strict and painful discipline on children inevitably results in their becoming more rebellious, almost as if to validate the opinion of their parents that they are “naughty” kids. It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard.

Renuka T. Balasubramaniam is a member of the Human Rights Committee (HRC), Bar Council Malaysia. For information on the work of the HRC, see www.malaysianbar.org.my/hrc. Complaints of rights violations may be forwarded to rezib@malaysianbar.org. my for consideration of the committee. However, we make no assurance that all cases will be adopted for action.

About 50 people comprising representatives from various animal rights organisations and animal lovers went to the Selayang Municipal Council (MPS) in Bandar Baru Selayang on Monday to pass a memorandum to its president Zainal Abidin Azim. The memorandum called for an immediate end to the dog-catching competition organised by the council.

Holding placards that condemned cruelty to animals, the group led by Society for the Prevention of Cruelty to Animals (SPCA) chairperson Christine Chin, waited for Zainal to accept the memorandum but since he was on leave, MPS public relations officer Helda Syima Abu Talab accepted it on his behalf.

Upon receiving the memorandum, Helda assured the group that it would be handed over to Zainal and a meeting would be arranged soon with SPCA.

Despite it being a peaceful gathering, some outsiders were seen shouting insults at the group in order to provoke them, but after delivering the memorandum, the group dispersed quietly.

Chin said that apart from requesting for an end to the competition, the memorandum also contained request for highly effective spaying or neuter initiatives and fines against irresponsible pet owners who abandon their pets.

“We also want an implementation of a smart, humane and effective legislation to promote responsible pet ownership,'' she said.

Apart from Chin, the memorandum was also signed by Malaysian Animal Rights and Welfare Association president N. Surendran, Petpositive president Anthony Thanasayan and Malaysian Association for Responsible Pet Ownership president Dr John Satyamoorthy, who were also present at the gathering.

Asked about Rawang assemblyman Datuk Tang See Hang's proposed meeting with SPCA, Chin said that she had not received any letter or call from Tang's office about the meeting.

Dog handler and professional groomer Noraini Rozaiti Mahamud, 35, when questioned on the issue of the strays posing a threat to residents said that dogs reacted aggressively only when they were threatened and dogs were not likely to attack unprovoked.

“This competition would inherently attract over-zealous residents without experience in handling dogs. This could result in someone getting injured and the dogs being blamed and crucified for attacking a person,'' she said.

Retired Selayang Hospital head nurse Kamala Chelliah, 57 said that she read about the Dog Catching Competition in the papers and turned up to show her dissatisfaction.

Kamala felt that the authorities could come up with a better solution to address this matter.

Wednesday, September 05, 2007

"Hang me or release me but don't leave me to suffer a slow death," is the cry of anguish from Baha Jambol, 45, who has been suspended helplessly on Death Row for nine long years, unable to appeal the sentence.

He was sentenced to death in April 1998 for being in possession of 50kg of cannabis. He is unable to appeal because the trial judge has failed to put pen to paper and give the grounds sentencing him to ‘death by hanging’.

Jambol's desperate predicament is not unique. It is the result of a serious flaw in Malaysia’s criminal justice system.

Jambol, a driver, was at the wheel of a car when the cannabis was found inside. But the car owner who was with him at the time was acquitted.

The scandal of the ink-shy judge, who is loath to put his judgments on paper, has shocked the nation and led to renewed demands for a swift end to the death penalty.

"This case is a severe travesty of justice. Jambol has been languishing on Death Row for nine years… what can be crueller than this? I urge the government to immediately abolish the death penalty and end the misery of people on Death Row," said Karpal.

Others too wait in great misery in the country's overcrowded jails for the same reason.

Aziz Sharif, 28, was sentenced to death in 2001 for murdering his girlfriend, a conviction that his lawyer Harbahjan Singh said is deeply flawed. Six years on, Harbahjan is still blocked from filing an appeal because there is no written judgement.

Aziz is suffering severe mental torture while waiting to know his fate, according to his family, who are poor rice farmers from Negeri Sembilan.

According to a New Straits Times report, they have appealed to the court numerous times to get the judge to write his judgment but without success.

"I wrote five letters to the court over the matter and sadly they did not have the decency to reply to any of the letters," Harbahjan told the paper.

Haszaidi Hasan, also sentenced to death for drug trafficking in 2001, is another case in point.

Denial of justice

Opposition politicians and rights activists are now pressing for action against Malaysia's indolent judges.

"Their lackadaisical attitude has hamstrung the administration of justice to people who need it the most," DAP lawmaker M Kulasegaran said.

"If the judges had done their basic duties the convicted persons could have speedily filed their appeals and probably been acquitted. A long delay is a mark of a poor criminal justice system.”

He urged the government to set free Death Row inmates caught in this predicament, adding that “a more lasting and more humane solution is to abolish the death penalty".

The cases have also been taken up by the rights group Malaysians Against the Death Penalty.

"Prisoners facing capital punishment are under severe pressure if their appeals are delayed," said co-director and lawyer Charles Hector.

"Judges should understand the tremendous pressure the death penalty generates… delaying the right to appeal is an act of utmost cruelty. Family members are also left emotionally drained by the uncertainties and the long meaningless delays. It is an intolerable form of torture.

"This tragic delay is another reason to review the death penalty. We demand an immediate moratorium on all executions pending the abolition of the death penalty in Malaysia."

Amnesty International also wants an immediate moratorium on all further executions, while the Bar Council has asked lawyers to report back cases where clients are enduring a "slow death" because of long-delayed or non-existent written judgements.

The Council plans to present Chief Justice Ahmad Fairuz Sheikh Abdul Halim with a list of serious cases. The hope is that offending judges will be penalised, a sanction that might finally end such torment.

Malaysia imposes the death penalty for a raft of offences, from drug trafficking (15gm of heroin and 200gm of cannabis) to poisoning the water supply. Murder, possession of firearms and treason carry a mandatory death sentence.

More than 1,000 persons have been executed since independence in 1957 and some 300 are currently awaiting execution, many of them Acehnese from Indonesia convicted of trafficking cannabis. - IPS

On 18 December 2007, the UN General Assembly endorsed a resolution calling for "a moratorium on executions" by an overwhelming majority: 104 votes in favour, 54 against and 29 abstentions. - RESOLUTION 62/149

On 18 December 2008, the United Nations General Assembly adopted a second resolution calling for a moratorium on the use of the death penalty. 106 countries voted in favour of the draft resolution, 46 voted against and 34 abstained.

22/12/2010, the United Nations General Assembly 3rd resolution in favour of a universal moratorium on the death penalty : 108 countries voted in favour, with 41 against and 36 abstentions.

Radio Interviews & VDOs

BFM Radio (13/10/2011) - Talking with Charles Hector and Nico Tuijn about the death penaltyDeath in Dilemma - The Final Curtain (produced by the Malaysian Bar), about 25 minuted, is shown in the first part of this VDO

MADPET (Malaysian Against Death Penalty and Torture)

MADPET is a movement for the abolition of death penalty and torture, and it is also been involved in issues of administration of justice, death in custody, freedom of expression, opposing abuse of power and wrongdoings by the police, prison authorities and other enforment authorities, animal rights, rights of minority groups, housing rights, rights of the disabled, concerns in the criminal justice system. MADPET is for the promotion of human rights, human freedoms and justice in Malaysia and in our world.